Palmer Leisure Coolum Pty Ltd ("PLC") and Clive Palmer face criminal proceedings in the Magistrates Court, concerning alleged offences under the Corporations Act 2001 (Cth). They brought a claim in the Supreme Court, seeking to permanently stay those criminal proceedings as an abuse of process, or on the basis that they were doomed to fail. Two of the defendants to the claim, ASIC and the CDPP, brought an application seeking to stay, strike out or set aside the claim. Ryan J reviewed the authorities concerning when a court will intervene in criminal proceedings, and found that doing so is only warranted in exceptional circumstances. There was nothing exceptional about PLC and Mr Palmer's circumstances. Accordingly, their claim was set aside, and their statements of claim struck out.
23 January 2019
Palmer Leisure Coolum Pty Ltd ("PLC") and Clive Palmer, a director of that company, were both charged with an offence under the Corporations Act 2001 (Cth) ("the Act"). . The alleged offence is that in 2012, PLC offered a “takeover bid” of shares in a company called “The President's Club”. In alleged contravention of s 631(1) of the Act, having publicly proposed the takeover bid, it did not then make offers for the shares/securities within two months. . The charges are at the pre-committal stage. .
PLC and Mr Palmer contend that the charges are misconceived because the bid did not involve securities under the Act. . However, the Magistrate declined to hear a no case submission prior to a committal hearing, and the Magistrates Court has no power to stay committal proceedings as an abuse of process. . Accordingly, PLC and Mr Palmer filed a joint claim in the Supreme Court seeking declarations about the charges, and relief including a permanent stay of the criminal proceedings. .
This judgment concerns an application by the second and third defendants (the CDPP, and ASIC respectively – "the defendants") for an order that PLC and Mr Palmer's claim and statement of claim be set aside or permanently stayed. .
The defendants argued that the plaintiffs' claim was an "[i]nappropriate attempt to interfere with the criminal process". . Firstly, because it would "disrupt and fragment" the proceedings in a way that has been "repeatedly deprecated by the High Court". Secondly, because it would improperly and vexatiously use the processes of the court in a multiplicity of proceedings, on the same issue to be dealt with by the prosecution. .
PLC argued that the defendants' application for a permanent stay was "in substance" a summary judgment application, and that therefore the approach should be "no less stringent" (e.g. that the power should be used sparingly and only in clear cases). –. Mr Palmer submitted that the circumstances were sufficiently exceptional to justify a fragmentation or multiplicity of proceedings. He alleged that the prosecution was brought for an improper purpose – to stifle his political ambitions at the next Federal election. –, , . He also contended that only the Supreme Court proceedings could prevent delay and end the proceedings "now" (implicit was an assertion that he had a right to a speedy resolution of the criminal proceedings). .
Her Honour's conclusions
Ryan J reviewed an extensive number of authorities, which made it plain that (at ):
“this court should not grant relief which would interfere with, or fragment, the course of criminal proceedings unless the need for such interference or fragmentation is absolutely plain and manifestly required or the circumstances are exceptional and extraordinary.”
Her Honour found that there was “nothing exceptional” in the plaintiffs' circumstances that would warrant the Supreme Court's intervention. . If the prosecution was “doomed to fail”, as alleged by the plaintiffs, then such a submission could be made before the Magistrate, or in the District Court at the end of the Crown case. . As to Mr Palmer's submission concerning an alleged improper purpose behind the charges, her Honour said that if there was "clear evidence" then the Court may intervene, but "this is not such a case". . To the contrary, documents tendered by the CDPP did not suggest "anything other than an orthodox approach to the consideration of the prosecution of the plaintiffs". .
As to the argument concerning delay, her Honour noted that the Australian common law "does not recognise … a special right to a speedy trial, or to a trial within a reasonable time". . Delay would only warrant a permanent stay of proceedings if it meant that a fair trial could not be achieved. . No such prejudice was identified. .
In the result, her Honour ordered that the plaintiffs' claim be set aside, and the accompanying statements of claim struck out. –.